The opinion of the court was delivered, by
Strong, J.Whether, in an ejectment wherein judgment has been recovered by the plaintiff, with a condition that it shall be *227released on the payment by the defendant of a sum of money in instalments payable at different times, an habere facias can he awarded before default in the last payment, we are not called upon now to decide. For if it can in general, it is plain that the plaintiff can waive his right to insist upon a strict forfeiture. Such an ejectment involves equities between the parties. The judgment recognises 'an equitable interest in the land in the defendant, and determines that it shall be foreclosed after a certain time. It cannot be doubted that the plaintiff may extend that time. Until the equity of the defendant is cut off, the plaintiff continues his creditor for the unpaid purchase-money, holding the legal title of the land as a security for the debt. But when the equity is foreclosed, or extinguished, the plaintiff is no longer a creditor. Any acknowledgment of the defendant as a debtor for the purchase-money is therefore an admission that his equity continues, and is a waiver of the plaintiff’s right to insist upon a forfeiture.
In the present case the plaintiff has done two acts which were inconsistent with any right to an habere facias when it was awarded. His judgment was on condition that it should he released on the payment of $90 on the 1st of June 1864, with interest, and the further sum of $45.76, with interest and costs, on the 1st day of June 1865. On the 7th of May 1864, before the time fixed for the payment of either of the instalments, the plaintiff assigned upon the record the one falling due June 1st 1865 to one Gieorge W. Arnold. This was in equity an order upon the defendant to pay that instalment to Arnold. After this assignment the plaintiff had no right to destroy the debt assigned, by taking out an habere facias before June 1865. That would amount to a fraud upon his assignee, and also upon the defendant whom he had directed to pay the debt to the assignee. And still more. On the 17th of August 1864, after the time fixed for the payment of the first instalment, the plaintiff assigned it also to Barber & Rulofson. This last assignment was an unequivocal acknowledgment that the defendant continued to be his debtor, and that his equity was not foreclosed. And it was a notice of that effect to the defendant, for as in the other case it was an order upon him to pay the instalment to the assignees. Under these circumstances no execution should have been awarded.
The record shows that the instalment assigned to Arnold was duly paid, and that the other was paid into court on the 2d of May 1865, apparently with the costs. The judgment is therefore released. But the plaintiff should file in court a deed for the land, before the money in court should be allowed to he taken out.
The order of the court awarding an habere facias possessionem is reversed with costs, and the record is remitted.